In my last post, I focused on the potential civil rights issues arising from the account given by Joe Scarborough and Mika Brzezinski concerning their allegation that the President, through his staff, asked them to apologize for negative coverage and make their coverage more positive in exchange for the President using his authority to stop publication of a potentially damaging story about them in the National Enquirer. Again, there appears to be more to this story, the President denies Joe’s account, and it is unclear as yet whose version is correct. My previous post discussed the federal statutes that make it a crime to willfully deprive a person of his rights, 18 U.S.C. 242, and to conspire to injure, oppress, threaten, or intimidate a person in the exercise of a constitutional right, or because of his exercise of a constitutional right. 18 U.S.C. 241. But because there has been some commentary on the potential extortion and reputational blackmail aspects of this story, I will now focus on those.
First, let’s begin with the statutes that proscribe extortion. The Hobbs Act, 18 U.S.C. 1951, does so, but I think the Hobbs Act is problematic here. This law makes it a crime to obstruct, delay, or affect commerce by extortion. It further defines “extortion” in section 1951(b)(2) as the “obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”
The problem is that, in this case, even assuming the truth of Joe’s account, there was likely no effort to obtain “property.” Although intangible things can be “property,” the Supreme Court held in Sekhar v. United States that “property,” for purposes of Hobbs Act extortion, must be capable of transfer from one person to another. It must be obtainable. The Sekhar Court also distinguished between extortion and coercion, which, the Court said, is threatening another person to do or abstain from doing something that he or she has a legal right to do or abstain from doing. Coercion, then, need not involve transferable, obtainable property; Hobbs Act extortion does. And the Hobbs Act does not cover mere coercion.
The other statutes that might seem directly relevant here are those in the statutory scheme involving interstate communications, 18 U.S.C. 875. In particular, consider subsections (b) and (d), both of which forbid threatening interstate communications made with the “intent to extort.” They also require that the threats be to “injure the person of another” (as in (b)) or to “injure the property or reputation of the addressee” (as in (d)). If Joe’s account is true, then if the President was threatening to greenlight a story that would cause reputational or financial jury to Joe and Mika, this would seem to fit the injury element, even though it is not physical injury as required by subsection (b) (that is, if we can say that “injury to the person” also includes reputational or financial injury; of course, this could also mean physical injury only).
Here the problem is that the mens rea element requires an “intent to extort . . . money or other thing of value.” Even in Joe’s account, the President did not seek money. The question, then, would be whether the President’s alleged effort to extract an apology, and thereby change the substantive content of Morning Joe’s coverage, would constitute extorting a “thing of value.” One might argue that a political commentary show’s substantive coverage of the President is a “thing of value” because it is the show’s content that attracts viewers and advertisers, revenue and ratings. Perhaps, it could be argued, Morning Joe’s viability would be affected if it changed the way it covered the President. But this would seem to be a contested issue in a case under either section 875(b) or section 875(d). And if Sekhar’s understanding of extortion in the Hobbs Act context also applies to the extortion provisions of section 875, then it would not be enough to simply show that there was merely intent to coerce.
A somewhat more viable statute in the section 875 scheme could be subsection (c), which also forbids interstate communications that threaten to injure the person of another, but does not require any intent to extort. Thus, we can avoid the extortion/coercion problem that Sekhar acknowledged, as well as the tricky issues involving money and what a “thing of value” is. The Supreme Court held in Elonis v. United States that section 875(c) requires that the actor send a communication with the purpose of making a threat, or with knowledge that the communication will be viewed as a threat. Mere negligence will not suffice, but the Court did not address recklessness (Justice Alito’s separate opinion would have allowed a conviction based on recklessness — “conscious[ly] disregard[ing] the risk that the communication will be viewed as a true threat”). Again, if a threat to injure reputation or to cause financial harm satisfies the “injury to the person of another” element, then this would seem to be a better fit than the more complicated extortion statutes.
In short, those who say this alleged incident might not fit the legal standards for extortion or reputational blackmail may well be right. I am not sure, however, that failure to satisfy extortion or reputational blackmail is, or should be, the end of the matter. Again, if the First Amendment protects Joe and Mika from a threat of the kind alleged, then sections 241 and 242 are potentially implicated, and section 875(c) is worth a closer look. But even if, as is certainly possible, Joe’s allegations would be insufficient to support application of the criminal statutes I have mentioned, there remains the question of whether — if the facts are as Joe alleges them — this amounts to a serious abuse of power, one that implicates the First Amendment rights of the media and that deserves greater scrutiny by Congress, the institution charged with investigating presidential abuses.
Questioning the media, even in a combative tone, is one thing, and hardly new for presidents. But if a president seeks to do harm to individual members of the media merely because the president dislikes the content of, and viewpoint expressed in, the media’s coverage of him, that is quite another thing entirely. And constitutionalists should stand firm against such an authoritarian posture, whether criminal or not.